Suing For Emotional Distress? You May Have To Submit To An IPE

So you plan to bring a civil suit against someone or some entity to obtain retribution for some wrong, and as part of your lawsuit, you plan to allege intentional or negligent infliction of emotional distress.  In deciding whether to allege emotional distress, you should consider that you may be required to submit to an independent psychiatric exam (IPE) and you may be required to produce documents and information regarding any counseling or other mental health care (including medication) you have received . . . ever.

Attorney Deidre Clark, a plaintiff in a sexual harassment and retaliatory discharge case against her law firm, just learned this the hard way.  Ms. Clark claimed that the firm fired her in retaliation for complaining about a partner’s unwanted sexual advances using her online posting of her erotic novel as a pretext.  According to a February 23, 2015 article titled Steamy novel writer will have to get psych exam in wrongful firing suit against BigLaw firm, Ms. Clark was ordered to undergo a psychiatric exam because her $15 million claim for intentional infliction of “severe” emotional distress brought her mental state into controversy.  Ms. Clark unsuccessfully argued that although she suffers from suicidal thoughts, anxiety, depression, and related reactions as a result of the defendants’ actions, she is not alleging that the defendants’ actions caused any diagnosed psychiatric condition and does not plan on presenting expert testimony to support her emotional distress claim.  The court ordered the IPE, reasoning that due to the severity of the emotional distress claim, the exam would allow the law firm to defend against the claim.  An appellate court agreed.

Legal consumers contemplating an emotional distress claim should heed this cautionary tale.  Not only is fighting a motion for an independent psychiatric exam itself emotionally draining, it can be quite expensive as well.  The decision to include an emotional distress claim should be an informed one.

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